FAMILY COURT OF AUSTRALIA
| REINER & REINER | [2009] FamCA 926 |
| FAMILY LAW – PARENTING - disputed orders as to time with child - Impact of separation of child from siblings - Allegations of medical negligence against a parent which is unfounded - Not appropriate to make order for EQUAL SHARED PARENTAL RESPONSIBILITY FAMILY LAW – PROPERTY - Division of modest assets - Disparity of contributions - Add-backs |
| Family Law Act 1975 (Cth) ss4, 60B, 60B(1)(b),(c) and (d), 60B(2), 60CA, 60CC(2)(b), 60CC93), 60CG(1), 61DA(1), (2), (4), 65D(1), 69ZT(1), 74(4)(a), (b), 75(2), 75(2)(1), 79 Evidence Act 1995 (Cth) ss 140(2), 55, 56, 140(2) Child Support (Assessment) Act 1989 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Champness and Hanson (2009) FamCAFC 96 Hickey & Hickey & Attorney-General for the commonwealth of Australia (2003) FLC 93-143 Coughlan (2005) FLC 93-220 Farnell (1996) FLC 92-681 Marando (1997) FLC 92-754 Townsend and Townsend (1995) FLC 92-569 Robb and Robb (1995) FLC 92-555 Pierce and Pierce (1999) FLC 92-844 Mallett and Mallett (1984) FLC 91-507 |
| APPLICANT: | Ms Reiner |
| RESPONDENT: | Mr Reiner |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 1284 | of | 2007 |
| DATE DELIVERED: | 25 September, 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 11, 12, 15, 16 & 17 JUNE 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR KANAREV |
| SOLICITOR FOR THE APPLICANT: | SOUTH EAST LAWYERS |
| THE RESPONDENT: | IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR ALLEN |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | SCHETZER CONSTANTINOU |
Orders
For the avoidance of doubt, the child referred to in these orders is J born … December, 2002.
That the husband have sole responsibility for all major educational decisions concerning the child during his primary school years but thereafter, the husband and the wife shall make the decisions jointly.
That the wife have sole parental responsibility for all major medical decisions concerning the child.
That for the purposes of all major medical treatment for the child, unless it is urgent, the wife consult the husband by email advising him in advance of any medical treatment proposed by her in respect of the child and any medical treatment recommended by the child’s medical practitioners.
That by these orders, the husband may attend any medical practitioner at his expense and consult with the practitioner relating to the medical issues associated with the child, and subject to any views of the practitioner, attend any consultation between the doctor and the child.
That save as set out above, the husband and the wife have equal shared parental responsibility for the child.
That the child live with the wife.
That the child spend time with the husband as follows :
(a)from the conclusion of school on Thursday to the commencement of school on the following Monday morning in each alternate week commencing on Thursday 1 October, 2009;
(b)for one half of all school term holidays by agreement and failing agreement, for the period from 9:00 am. on the second Saturday of the holidays until 7:00 pm. on the third…
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- Reiner & Reiner [2009] FamCA 926
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CaseChat Overview and Summary
The court was required to determine the specific terms of parental responsibility for major educational and medical decisions concerning the child. It also needed to establish the child's living arrangements and the detailed schedule for the child spending time with each parent. Further issues included provisions for communication between parents and the child, attendance at school functions, and arrangements for medical consultations. The court also addressed financial matters, including property settlement and the removal of the child from Australia.
Justice Cronin made orders that the husband would have sole responsibility for major educational decisions during the child's primary school years, with joint decision-making thereafter. The wife was granted sole responsibility for major medical decisions, with a requirement to consult the husband by email for non-urgent treatments. The husband was permitted to attend medical consultations at his own expense. The court ordered that the child live with the wife and established a detailed schedule for the child spending time with the husband, including provisions for holidays and birthdays. The court also made orders regarding communication, attendance at school events, and a requirement for both parents to attend a Parents’ Orders Program.
The court further ordered that neither parent be permitted to remove the child from Australia until 30 November 2011, with the Australian Federal Police to place the child's name on the Airport Watch List. In terms of financial settlement, the husband was ordered to pay the wife $21,000 and transfer his interest in a property at M, Victoria, with the wife to refinance the mortgage. All other extant applications were dismissed.
Orders
Orders of the court
1.
For the avoidance of doubt, the child referred to in these orders is J born … December, 2002.
2.
That the husband have sole responsibility for all major educational decisions concerning the child during his primary school years but thereafter, the husband and the wife shall make the decisions jointly.
3.
That the wife have sole parental responsibility for all major medical decisions concerning the child.
4.
That for the purposes of all major medical treatment for the child, unless it is urgent, the wife consult the husband by email advising him in advance of any medical treatment proposed by her in respect of the child and any medical treatment recommended by the child’s medical practitioners.
5.
That by these orders, the husband may attend any medical practitioner at his expense and consult with the practitioner relating to the medical issues associated with the child, and subject to any views of the practitioner, attend any consultation between the doctor and the child.
6.
That save as set out above, the husband and the wife have equal shared parental responsibility for the child.
7.
That the child live with the wife.
8.
That the child spend time with the husband as follows :
(a) from the conclusion of school on Thursday to the commencement of school on the following Monday morning in each alternate week commencing on Thursday 1 October, 2009;
(b) for one half of all school term holidays by agreement and failing agreement, for the period from 9:00 am. on the second Saturday of the holidays until 7:00 pm. on the third Sunday of the holidays;
(c) for one half of all long summer school holidays by agreement and failing agreement, for the one half during which the child’s older siblings are not spending time with their biological father;
(d) from 8:30 am. on Easter Sunday in 2010 from 8:30 am. until 4:00 pm. on Easter Monday and a similar period in each alternate year thereafter;
(e) if the child’s birthday or the husband’s birthday falls on a weekday during which time the child is not spending time with the husband, then from the conclusion of school on that day until 7:00 pm.;
(f) if the child’s birthday or the husband’s birthday falls on a Saturday or a Sunday during which time the child is not spending time with the husband, then for a period of four hours from 1:00 pm. to 5:00 pm. on the relevant day;
(g) from 4:00 pm. on 25 December, 2009 until 5:00 pm. on 26 December, 2009 and for a similar period in each alternate year thereafter;
(h) from 4:00 pm. on 24 December, 2010 until 4:00 pm. on 25 December, 2010 and for a similar period in each alternate year thereafter; and
(i) from 8:30 am. on each Fathers’ Day until the commencement of school on the following Monday morning.
9.
That the father communicate with the child by telephone on any day prior to 7:30 pm. but no more than once per day.
10.
That unless the changeover occurs at the child’s school, it shall take place at the home of the wife.
11.
That paragraph (8)(a) hereof be suspended during the school term holidays and the long summer holidays and recommence after any particular school holiday period in the same sequence as if the holidays had not taken place.
12.
That the time between the husband and the child under these orders is suspended and the child spent time with the wife during the following periods, unless the parties agree otherwise :
(a) on Mothers’ Day from 8:30 am. until the commencement of school on the following Monday morning;
(b) on the child’s birthday, the wife’s birthday or the child’s siblings’ birthdays (whilst they are under the age of 18 years), if that day falls during a period of time that the child would spend with the husband pursuant to these orders, then from the conclusion of school until 7:00 pm. on a weekday or from 1:00 pm. until 5:00 pm. on the relevant Saturday or Sunday;
(c) from 8:30 am. on Easter Sunday 2011 until 4:00 pm. on Easter Monday and for a similar period in each alternate year thereafter;
(d) from 4:00 pm. on 24 December, 2009 until 4:00 pm. on 25 December, 2009 and for a similar period in each alternate year thereafter; and
(e) from 4:00 pm. on 25 December, 2010 until 5:00 pm. on 26 December, 2009 and for a similar period in each alternate year thereafter.
13.
That unless the principal of the child’s school directs either parent in writing not to attend school functions, activities and events involving the child, each parent be at liberty to attend any such function. Further, that each parent be at liberty to attend any organised extra-curricular activities involving the child.
14.
That if the child is spending time with the husband in accordance with these orders, the wife be at liberty to telephone the child prior to 7:30 pm. on no more than once on any such day.
15.
That if it has not already occurred, the husband and wife forthwith do all things necessary to arrange a consultation with the E Medical Centre to discuss the asthma condition of the child with a view to obtaining a better understanding of the condition and its treatment.
16.
That the husband and wife do all things necessary and sign all such documents as may be required to enable them to attend the Parents’ Orders Program conducted by GordonCare for the purposes of endeavouring to improve their ability to communicate about matters concerning the child’s health, welfare and development.
17.
That GordonCare be provided by the wife, husband or the independent children’s lawyer, with a copy of the Children and Parents Issues Assessment dated 2 February, 2009 and the Family Report dated 14 May, 2009.
18.
That the independent children’s lawyer be discharged from these proceedings.
19.
That until 30 November, 2011 the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child J born … December, 2002 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name/s on the Watch list until 30 November, 2011.
20.
That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.
21.
That for the purposes of avoidance of doubt, paragraph (19) of this order remains in force until 30 November, 2011 whereupon it will automatically expire.
22.
That by 1 October, 2011, the husband pay to the wife $21,000 by way of final settlement of all of entitlements under Part VIII of the Act in addition to the entitlements set out in paragraphs (23) to (25) hereof.
23.
That the husband forthwith transfer to the wife at her expense, all of his interest in the property at M in the State of Victoria.
24.
That the wife forthwith refinance the mortgage encumbering the property at M and provide to the husband within sixty days of the date of these orders, evidence of the mortgage liability of the husband being discharged.
25.
That each party otherwise retain and the other relinquish any interest in, all other property in that party’s possession or control including any interest in any superannuation entitlement as at this date.
26.
That all extant applications be otherwise dismissed.
27.
That these applications be removed from the List of matters awaiting finalisation.
28.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
29.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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